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The U.S. Environmental Protection Agency finalized standards today that are designed to protect fish and other aquatic life drawn each year into cooling water systems at large power plants and factories.  The rule addresses impingement issues and heat damages that can be caused by cooling water intake structures at large industrial facilities and power plants.

The final rule establishes requirements under the Clean Water Act for all existing power generating facilities and existing manufacturing and industrial facilities that withdraw more than 2 million gallons per day of water from waters of the U.S. and use at least 25 percent of the water they withdraw exclusively for cooling purposes. The rule covers roughly 1,065 existing facilities –521 factories and 544 power plants.Continue Reading EPA Releases Cooling Water Intake Rule

From Chris Bell of GT Houston:

EPA today published an advanced notice of proposed rulemaking seeking comment, by August 18, 2014, on a variety of options EPA is considering to collect and make available to the public information about chemicals used in oil and gas exploration and production, particularly those used in hydraulic fracturing.  79 Fed. Reg. 28664 (May 19, 2014).  This ANPRM signals the potential for a rule requiring disclosure of detailed information about chemicals used in hydraulic fracturing E&P activities, possibly imposing obligations on everyone from the manufacturers or importers of the chemicals to the service companies or well operators who mix the chemicals onsite prior to use.  This initiative is the outcome of a TSCA rulemaking petition filed in 2011 by over 100 environmental and public interest groups, which EPA denied in part and granted in part.Continue Reading EPA Initiates Rulemaking On Reporting About Hydraulic Fracturing Fluids

On May 6, 2014, the Miami-Dade County Board of County Commissioners passed a Resolution (Click Here) requiring that all County infrastructure projects “shall consider” the potential Impacts of…
Continue Reading “Policy-Setting” Resolution Requires County Infrastructure Projects to Consider Potential Impacts of Sea Level Rise and Storm Surge During All Project Phases

In a case of first impression, the Massachusetts Supreme Judicial Court (“SJC”) recently rejected a landowner’s challenge to the so-called Priority Habitat regulations issued under the Massachusetts Endangered Species Act (“MESA”).  Pepin vs. Division of Fisheries and Wildlife, 467 Mass. 210 (2014).  These regulations require that projects located in areas mapped as Priority Habitat must undergo pre-development review to determine if the proposed project may result in a “take” of state-listed species.  Because significant portions of Massachusetts have been designated as Priority Habitat (nearly 340,000 acres in western Massachusetts alone), this case has been closely followed due to its potential consequences to real estate development in Massachusetts
Continue Reading Massachusetts Endangered Species Act Regulations Upheld as Valid Agency Rulemaking

From Jerry Stouck of GT Washington, D.C.:

A Florida company was awarded nearly $7 million by the U.S. Court of Federal Claims on March 14 in a long-running case…
Continue Reading Proper Definition Of The Relevant Property Leads to a $7 Million Award In a Takings Case Arising From Denial of A Wetlands Fill Permit

From Christopher Bell of GT Houston:

The recent chemical spill emergency in West Virginia is a reminder of the importance of effective risk management and compliance programs.  It has been reported that the tanks at the West Virginia facility had not been inspected since the early 1990s.  This drives home a point well understood by Environment, Health, and Safety (“EHS”) professionals: the absence of enforcement or regulatory inspections does not mean everything is in good shape. 

This incident should encourage facilities to make sure that Spill Prevention, Control, and Countermeasure (“SPCC”) plans – whether or not strictly required – are adequate and being properly implemented, above and below ground tank storage is in good shape, and that release reporting requirements are understood and complied with.  It is also a broader cautionary tale on the importance of consistently and systematically executing effective EHS risk management to prevent incidents from happening in the first place, and being ready to rapidly respond to and mitigate the consequences of incidents that do occur. 

The level of attention that each facility devotes to managing EHS risk should be tailored to the risks that that facility poses.  One size does not fit all.  However, managers should be sure not to assume that physically or financially small facilities necessarily pose small risks.  They have to ask the question.  Nor should managers assume that just because the core business of the facility does not conjure up visions of chemical spills, that the facility does not pose a risk.  Again, they have to look out back and ask the question.  

Some key points after the break:   
Continue Reading West Virginia and the Importance of Risk Maintenance